American Civil Liberties Union of New Jersey

More Obstacles Encountered in Quest for Transparency about Facebook Donation

More Obstacles Encountered in Quest for Transparency about Facebook Donation

October 25, 2011

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Top officials are using personal email to discuss Facebook and City of Newark refuses to release records

NEWARK - The Secondary Parent Council (SPC) and other organizations seeking information about the $100 million pledge by Facebook CEO Mark Zuckerberg continue to encounter roadblocks by the City of Newark and other public officials who are using personal email accounts to discuss the donation.

"The bottom line is that folks on the ground in Newark want basic information about the terms of the gift, such as whether it included any preconditions" said Deborah Jacobs, American Civil Liberties of New Jersey (ACLU-NJ) executive director. "But between the use of personal email accounts and unjust denials of open records requests, they've learned practically nothing."

Recent developments include:

The City of Newark has asked the court to dismiss an open records lawsuit filed by the ACLU-NJ on behalf of the SPC, a Newark group of parents and grandparents that requested public records about the Facebook donation. The City claimed in its response (1.7mb PDF) that the records are protected by mayoral executive privilege (something allowed only to the Governor in New Jersey), that Newark Mayor Cory Booker was not acting in official capacity, that the communications were exempt because they were deliberative and that the mayor has a general need for privacy in executing his functions.

The City's response came days after the ACLU-NJ discovered that top officials, including Mayor Booker and Department of Education Commissioner Christopher Cerf have used their personal email accounts to discuss the Facebook pledge. The ACLU-NJ made the discovery after reviewing documents released in response to an open records request made by one of its clients, the Education Law Center (ELC).

In July, the ELC filed an open records request (11k PDF) with the state Department of Education (DOE) seeking any emails, documents or other correspondence between the agency and the Foundation for Newark's Future, a nonprofit established to raise matching funds and administer the money. The DOE turned over documents and email, (1.6mb PDF) which included email exchanges between Cerf and Booker on their personal accounts.

The ACLU-NJ emailed a letter to the DOE (395k PDF) asking that it search the personal email accounts of Cerf and Assistant Commissioner Andrew Smarick for public records. By law, public business conducted on a personal email account is a public record. Public officials should not be allowed to conduct business on private email accounts because it lessens accountability when the email is not on the government agency's computer system.

ELC is one of several organizations that have sought transparency and records about the Facebook money. The NAACP and SPC have also filed open records requests with the City of Newark, the Newark Public Schools and the DOE. Although the DOE recently provided some records, not one of the agencies has produced any written agreement or contract memorializing the terms of the gift.

Laura Baker, a representative of the SPC, said she is dismayed by the City of Newark's lack of response.

"I'm extremely disappointed that the city has once again refused to turn over records," said Baker. "As parents and grandparents, we just wanted to get a better idea about how our leaders are making decisions that affect our children."

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